W.L. v. State, Court of Appeals No. A-11483

CourtCourt of Appeals of Alaska
Writing for the CourtJudge HANLEY.
PartiesW.L., a minor, Appellant, v. STATE OF ALASKA, Appellee.
Docket NumberCourt of Appeals No. A-11483,No. 6169
Decision Date15 April 2015

W.L., a minor, Appellant,

Court of Appeals No. A-11483
No. 6169


April 15, 2015


Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

Trial Court No. 3AN-10-68 DL


Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge.

Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.*


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W.L. was convicted of two counts of second-degree sexual abuse of a minor for conduct involving a five-year-old girl, N.M. W.L.'s convictions were based, in part, on admissions he made to the police during an interview prior to his arrest.

W.L. argues that the superior court should have suppressed his statements to the police because he was in custody when the police interviewed him and he did not receive the warnings required by Miranda v. Arizona.1 He also argues that the interview was coercive and that his statements were involuntary. We find no merit to these claims and affirm the superior court's decision denying W.L.'s motion to suppress.

W.L. was also charged with second-degree sexual abuse for conduct involving J.H., a five-year-old boy. W.L. argues that the superior court erred by excluding evidence that J.H. had been sexually abused by his father when he was eighteen months old — evidence W.L. offered to explain J.H.'s sexual language and behavior. We conclude that even if the court erred by excluding this evidence, the error was harmless beyond a reasonable doubt because the jury did not convict W.L. of sexually abusing J.H.

Facts and proceedings

In December 2009, five-year-old N.M. disclosed to her mother that W.L., the fifteen-year-old nephew of the woman whose day care N.M. attended, had sexually abused her. N.M.'s mother took her to Alaska CARES, where N.M. was interviewed about the alleged abuse. During the interview, N.M. told an investigator that W.L. anally and vaginally penetrated her with his fingers, penetrated her vaginally with his penis, and put his penis in her mouth.

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N.M.'s physical examination revealed no signs of injury or abuse. However, the sexual assault nurse who examined N.M. said that it was common to find no physical signs of abuse when examining a child victim of sexual abuse.

Anchorage Police Detectives Deven Cunningham and Chris Thomas went to W.L.'s home to interview W.L. Although both detectives were present during the interview, Detective Cunningham conducted the questioning. During this interview, W.L. did not confess to sexually abusing N.M., but W.L. made inculpatory statements that were later admitted against him at trial. Detective Cunningham did not give W.L. Miranda warnings at any point during the interview.

Several months later, five-year-old J.H., who attended the same day care as N.M., told his mother that W.L. had anally penetrated him with his penis. J.H.'s mother took him to Alaska CARES, where J.H. detailed the abuse. J.H.'s physical examination also revealed no signs of injury or abuse.

W.L. was charged as a delinquent with five counts of second-degree sexual abuse of a minor2: one for penetrating N.M.'s vagina with his hand, one for penetrating N.M.'s anus with his hand, one for placing his penis in N.M.'s mouth, one for penetrating N.M.'s vagina with his penis, and one for penetrating J.H.'s anus with his penis.

Before trial, W.L. moved to suppress his statements to the police, arguing that he was interrogated in violation of Miranda and that his statements were coerced and involuntary. Superior Court Judge Michael Spaan denied the motion.

Following trial, the jury convicted W.L. of two counts of sexual abuse involving N.M. The jury was unable to reach a verdict on the other charges.

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Why we conclude that W.L. was not in custody for Miranda purposes

On appeal, W.L. renews his claim that he was in custody when he made self-incriminating statements to Detective Cunningham, and that the superior court should have granted his motion to suppress those statements because he did not receive the warnings required by Miranda v. Arizona.3

Under Miranda, a suspect is entitled to be advised of his right against self-incrimination and his right to an attorney before he is subjected to "custodial" interrogation.4 Police questioning is "custodial" if there is a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest."5 The question is whether "a reasonable person [in the suspect's situation] would feel he was not free to leave and break off questioning."6 The determination of custody for Miranda purposes is made considering the totality of the circumstances.7

The events leading up to the police interview are relevant to this custody analysis.8 How the suspect got to the interview — whether the suspect came to the interview completely on his own, or in response to a police request, or escorted by police officers9 — is especially relevant if the suspect was not under formal arrest.

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The circumstances of the interview are also relevant, including when and where the interview occurred, how long it lasted, how many officers were present, what the officers and defendant said and did, whether the officers used actual physical restraint or its equivalent, and whether the defendant was obviously being questioned as a suspect.10

When the police interrogate a minor, the child's age is taken into account in the custody analysis.11 This is because "children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave."12

In this case, the superior court ruled that W.L. was not in custody when he was interviewed by the detectives. The court based this conclusion on the following facts: the detectives did not arrive at the house in a marked patrol car, they parked next door, they did not wear uniforms, and their weapons were not obviously visible. Although the interview took place in W.L.'s bedroom with the door closed, the court found that W.L. preferred a private interview. Detective Cunningham advised W.L. at the beginning of the interview that he was free to end the interview at any time, and the detective repeated that advisement later in the interview. And when W.L. asked to end the interview, Detective Cunningham immediately complied.

W.L. challenges several of the court's factual findings. He argues that the court clearly erred in finding that Detective Cunningham ended the interview as soon as W.L. expressed his desire to do so. From our review of the record, we conclude that W.L. was initially equivocal about wanting to end the interview, and that Detective Cunningham attempted to clarify what W.L. wanted. Later, when W.L. unequivocally

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said he was "done" talking, the detectives ended the interview. We conclude that the superior court's finding on this issue was not clear error.

W.L. also takes issue with the court's finding that W.L. "expressed to the detectives that he wished to keep the interview private." He points out that the detectives closed the bedroom door on their own initiative, not at his request. W.L.'s aunt directed the detectives to the back bedroom because the living room was noisy and the detectives wanted a quieter, more private place to conduct the interview. But there is nothing in the court's order suggesting that the court based its finding that W.L. preferred privacy on the fact that the bedroom door was closed. There was other, more direct evidence that W.L. wanted to keep the interview private: when Detective Cunningham told W.L. he could have someone present during the interview, such as a parent or his aunt, W.L. elected to proceed with the interview without anyone else there. W.L. also indicated that he was comfortable speaking with police officers. Later in the interview, W.L. told the detectives that he did not want his family to know what happened. In light of this record, we conclude that the superior court's finding that W.L. expressed a preference for privacy was not clear error.

With respect to the court's legal conclusion that W.L. was not in custody, W.L. concedes that the interview was not custodial at the outset. He argues, however, that the interview became custodial when Detective Cunningham began to use "confrontational, accusatory interrogation tactics." He argues that the second half of the twenty-minute interview "consisted primarily of Cunningham interrupting and rejecting [W.L.'s] protestations of innocence, insisting that [W.L.'s] guilt was beyond debate and that [W.L.] needed to confess to prove that he was the kind of person who could 'change.'"

During the latter portion of W.L.'s interview, Detective Cunningham's questions appeared to assume that W.L. had sexually abused N.M. W.L. attempted

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multiple times to deny Detective Cunningham's accusations, but each time the detective cut him off. At one point, in response to W.L.'s protestations of innocence, Detective Cunningham stated:

We're past whether or not this happened 'cause I know it did. The thing I need to find out is are you one of those people who can change or are you one of those people who are gonna keep doing this and keep doing this, that I'm gonna see you later on because we know that this is not gonna stop.

Soon after the interview took on an accusatory tone, W.L. made his first inculpatory statement. But not long after that, W.L. terminated the...

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